Immigration Appeal Division Rules, 2022 (SOR/2022-277)

Marginal note:Factors

• 99 (1) In deciding the application to reopen an appeal, the Division must consider any relevant factors, including

  • (a) whether the application was made in a timely manner and, if not, the justification for the delay; and

  • (b) if the applicant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made.

• Marginal note:Natural justice

  (2) In the case of an application that is made other than under section 71 of the Act, the Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice.

Marginal note:Subsequent application

100 If the appellant has made a previous application to reopen an appeal and that application was denied, the Division must consider the reasons for the previous denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence.

Notice of Constitutional Question

Marginal note:Notice of constitutional question

• 101 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

• Marginal note:Form and content of notice

  (2) The notice must be completed using Form 69 of the Federal Courts Rules or any other form that sets out

  • (a) the party’s name;

  • (b) the Division file number;

  • (c) the date, time and location of the hearing;

  • (d) the specific legislative provision that is being challenged;

  • (e) the material facts relied on to support the constitutional challenge; and

  • (f) a summary of the legal argument to be made in support of the constitutional challenge.

• Marginal note:Providing notice

  (3) The party must provide the notice to

  • (a) the Attorney General of Canada and the attorney general of every province, in accordance with section 57 of the Federal Courts Act;

  • (b) the other party; and

  • (c) the Division.

• Marginal note:Notice provided to Division

  (4) The notice that is provided to the Division must be accompanied by a written statement indicating how and when the notices were provided to the recipients referred to in paragraphs (3)(a) and (b) and proof that they were provided.

• Marginal note:Time limit

  (5) Documents provided under this rule must be received no later than 10 days before the day on which the constitutional question is to be argued.

Decisions

Marginal note:Notice of decision

102 When the Division makes a decision, other than an interlocutory decision, it must provide a written notice of decision to the parties.

Marginal note:Written reasons

• 103 (1) When the Division makes a decision on a sponsorship appeal or stays a removal order, it must provide the notice of decision together with the written reasons for the decision to the parties.

• Marginal note:Request for written reasons

  (2) A request referred to in paragraph 169(e) of the Act for reasons for a decision, other than a decision referred to in subrule (1) or an interlocutory decision, must be in writing.

Marginal note:When decision takes effect

104 A decision, other than an interlocutory decision, takes effect

• (a) if it is made in writing

  • (i) by a single member, when the member signs and dates the reasons for the decision; or

  • (ii) by a panel of three members, when all of the members of the panel sign and date their reasons for the decision; and

• (b) if it is given orally at a hearing

  • (i) by a single member, when the member states the decision and gives the reasons; or

  • (ii) by a panel of three members, when all of the members of the panel state their decision and give their reasons.

Transitional Provisions

Marginal note:Application

• 105 (1) Subject to subrules (2) to (4), these Rules apply to all proceedings filed before the day on which these Rules come into force, including any proceeding that a court refers back to the Division for redetermination.

• Marginal note:Appeal record

  (2) If the Minister or the Immigration Division receives a notice of appeal before the day on which these Rules come into force, the appeal record must be provided in accordance with the time limits set out in the Immigration Appeal Division Rules as they read immediately before that day.

• Marginal note:Confidentiality — ADR

  (3) Subrule 20(4) of the Immigration Appeal Division Rules, as they read immediately before the day on which these Rules come into force, continues to apply to any confidential information, statement or document given in an ADR conference for which the date of the notice to appear is before that day.

• Marginal note:Disclosure of documents

  (4) If an appeal is filed before the day on which these Rules come into force,

  • (a) the statement referred to in subrule 24(2) of these Rules is not required in respect of the appeal; and

  • (b) the time limits for providing or receiving documents set out in subrules 30(3) and (4) and 37(3) of the Immigration Appeal Division Rules, as they read immediately before that day, continue to apply.

Repeal

106 The Immigration Appeal Division RulesFootnote ¹ are repealed.

• Return to footnote ¹SOR/2002-230

Coming into Force

Marginal note:30th day after registration

107 These Rules come into force on the 30th day after the day on which they are registered.